Thanks to Labor Board Ruling, You Can Now Use Company Email to Organize a Union

In the 2007 deci­sion, the Labor Board analo­gized email to oth­er employ­er equip­ment — such as bul­letin boards, tele­phones, pho­to­copiers and tele­vi­sions — and found that the employ­er had a ​“basic prop­er­ty right to reg­u­late and restrict employ­ee use of com­pa­ny prop­er­ty.” In dis­sent, Mem­bers Lieb­man and Walsh crit­i­cized the Board, stat­ing that the deci­sion ​“con­firms that the NLRB has become the Rip Van Win­kle of admin­is­tra­tive agen­cies. Only a Board that has been asleep for the past 20 years could fail to rec­og­nize that e‑mail has rev­o­lu­tion­ized com­mu­ni­ca­tion both with­in and out­side the workplace.”

Rec­og­niz­ing the chang­ing nature of the work­place, Lieb­man and Walsh explained that email was becom­ing the new water cool­er, and that the Board fun­da­men­tal­ly mis­un­der­stood how email sys­tems work. In a pas­sage that reads almost as if writ­ten by a mil­len­ni­al to her out of touch grand­par­ents, the two mem­bers explained in basic terms to the Board major­i­ty the dif­fer­ence between emails and more tra­di­tion­al com­mu­ni­ca­tion media: ​“If a union notice is post­ed on a bul­letin board, the amount of space avail­able for the employ­er to post its mes­sages is reduced. If an employ­ee is using a tele­phone for Sec­tion 7 or oth­er non­work-relat­ed pur­pos­es, that tele­phone line is unavail­able for oth­ers to use.”

Emails, they explained, were dif­fer­ent, because many employ­ees could use the sys­tem simul­ta­ne­ous­ly, sub­ject lines clue the employ­ee into whether to read or dis­pose of the mes­sage, and the mar­gin­al cost for an email is almost zero.

Yes­ter­day, the Board vin­di­cat­ed Lieb­man and Walsh’s dis­sent and held that the majority’s 2007 deci­sion was ​“clear­ly incor­rect,” and that it ​“under­val­ued employ­ees’ core Sec­tion 7 [of the Nation­al Labor Rela­tions Act] right to com­mu­ni­cate in the work­place about their terms and con­di­tions of employ­ment, while giv­ing too much weight to employ­ers’ prop­er­ty rights.” There­fore, employ­ees who have access to work email can use the email sys­tem on non­work time to dis­cuss the terms and con­di­tions of their employ­ment and engage in oth­er orga­ni­za­tion activity.

In cor­rect­ing itself yes­ter­day, the Labor Board final­ly rec­og­nized the cen­tral place that dig­i­tal com­mu­ni­ca­tions has in work­ers’ lives. The Board rec­og­nized that email is dif­fer­ent than oth­er employ­ee equip­ment, and that most employ­ers tol­er­ate the per­son­al use of employ­er email. Fur­ther­more, the num­ber of employ­ees that ​“tele­work” has grown expo­nen­tial­ly, with an expect­ed 63 mil­lion employ­ees tele­work­ing by 2016. Recent sur­veys have found that approx­i­mate­ly one third of employ­ees report that their employ­er expects them to stay in touch out­side of work­ing hours and 69% fre­quent­ly or occa­sion­al­ly check their email out­side of nor­mal work­ing hours.

Tak­ing these new real­i­ties to heart, the Board con­clud­ed that email was less like a pho­to­copy machine as it was a ​“new nat­ur­al gath­er­ing place and a forum in which cowork­ers who share com­mon inter­ests will seek to per­suade fel­low work­ers in mat­ters affect­ing their union orga­ni­za­tion­al life and oth­er mat­ters relat­ed to their sta­tus as employ­ees.” In shift­ing from an equip­ment analy­sis to an analy­sis that rec­og­nizes emails as a basic form of com­mu­ni­ca­tion, the Board final­ly rec­og­nized the ubiq­ui­ty of emails and the ways in which employ­er lim­i­ta­tions effect work­ers’ asso­ci­a­tion­al rights.

And the Board dou­bled-down on rec­og­niz­ing the real­i­ties of mod­ern com­mu­ni­ca­tions this morn­ing in a much-antic­i­pat­ed final rule that sig­nif­i­cant­ly changes union elec­tion pro­ce­dures. The new rule includes a num­ber of sig­nif­i­cant ben­e­fits for work­ers who are orga­niz­ing, includ­ing post­pon­ing employ­er lit­i­ga­tion over union elec­tion issues until after the elec­tion takes place to elim­i­nat­ing the wait­ing peri­od between the time when an elec­tion is ordered and when it occurs (the time when many boss­es car­ry out their union-bust­ing cam­paigns through tac­tics like fir­ings or threats of clos­ing down a workplace).

But per­haps the most over­due change is the mod­ern­iza­tion of the ​“Excel­sior List” rules. Pri­or to today’s rule, employ­ers were required to turn over to the union an Excel­sior List, which con­tained the names and home address­es of work­ers with­in sev­en days after a union elec­tion is ordered, so that the union can effec­tive­ly com­mu­ni­cate with all the work­ers it seeks to represent.

The new rule requires the employ­er to also turn over any employ­ee email address­es and tele­phone num­bers it pos­sess, and short­ens the amount of time man­age­ment has to turn over the list to two days.

The week’s deci­sions are two long over­due cor­rec­tives and will hope­ful­ly restore some of work­ers’ basic rights on the job. Giv­en the bad news for work­ers from the Supreme Court ear­li­er this week, the cor­rec­tives are cer­tain­ly welcome.